Case Note & Summary
The case involves a criminal application filed by the accused (applicants) challenging an interim order passed by the 1st Ad hoc Additional Sessions Judge, Wardha, on 23-2-2010, in Sessions Case No.81 of 2005. The trial court, during the conduct of the sessions trial, directed the prosecution to examine two doctors, Dr. S.B. Thorat of Government Hospital, Wardha, and Dr. H.N. Chhabran of Indira Gandhi Medical College & General Hospital, Nagpur, as additional witnesses under Section 311 of the Code of Criminal Procedure, 1973 (CrPC). These doctors were not cited as witnesses by the prosecution in the complaint or charge-sheet. The background is that one Anup Jaiswal filed a complaint (Regular Criminal Complaint No.111 of 2004) before the Chief Judicial Magistrate, Wardha, alleging offences under Sections 147, 148, 149, and 395 read with Section 34 of the Indian Penal Code, 1860. After recording evidence of three witnesses cited by the complainant, the Magistrate issued process against the accused on 3-2-2005 and subsequently committed the case to the Court of Session as the offences were exclusively triable by that court. During the trial, the prosecution filed an application requesting the court to examine the two doctors as additional witnesses. The accused opposed the application on the ground that the witnesses were not cited in the complaint. The trial court allowed the application, directing the prosecution to examine the doctors. The accused challenged this order in the High Court. The High Court, after hearing the parties, held that the trial court's order was beyond the scope of Section 311 CrPC. The court noted that the power under Section 311 CrPC is to be exercised only if the evidence is essential for the just decision of the case and not to enable the prosecution to fill gaps in its case. The High Court observed that the prosecution had already examined its witnesses and the additional witnesses were not cited earlier; allowing their examination would amount to filling up lacunae. The court quashed the impugned order and directed the trial court to proceed with the trial without examining the additional witnesses. The application was allowed, and rule was made absolute.
Headnote
A) Criminal Procedure - Summoning of Witnesses - Section 311 CrPC - Power to summon witnesses cannot be used to fill gaps in prosecution case - The trial court directed the prosecution to examine two doctors as additional witnesses who were not cited by the prosecution. The High Court held that such direction was beyond the scope of Section 311 CrPC as it amounted to filling up lacunae in the prosecution case and was not for the just decision of the case. (Paras 3-6) B) Criminal Procedure - Summoning of Witnesses - Section 311 CrPC - Accused's right to fair trial - The power under Section 311 CrPC must be exercised only if the evidence is essential for the just decision of the case and not to enable the prosecution to fill gaps. The High Court quashed the order and directed the trial court to proceed with the trial without examining the additional witnesses. (Paras 5-6)
Issue of Consideration
Whether the trial court, in exercise of powers under Section 311 of the Code of Criminal Procedure, 1973, can direct the prosecution to examine witnesses who were not cited in the complaint or charge-sheet, and whether such direction amounts to filling up gaps in the prosecution case.
Final Decision
The High Court allowed the criminal application, quashed the impugned order dated 23-2-2010 passed by the 1st Ad hoc Additional Sessions Judge, Wardha, below Exhibits 125 and 126 in Sessions Case No.81 of 2005, and directed the trial court to proceed with the trial without examining the additional witnesses. Rule made absolute.
Law Points
- Section 311 CrPC
- power to summon witnesses
- additional witnesses
- gap-filling
- prosecution case
- fair trial
- accused's right
